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DoJ asks court to put brakes on spying case

The DoJ is appealing a district court judge's decision to proceed with the AT& …

The Department of Justice (DoJ) has appealed last week's decision (PDF) in the AT&T spying case, and is arguing against the district court's recommendation to appoint an expert who would assist the court with the handling of classified information. Judge Vaughn Walker had previously requested that the parties involved submit their nominations for the post, in order to address government concerns over the potential release of sensitive documents.

For those of you not following along at home, you're missing a legal case that could turn out to be one of the most influential of the decade, as well as one of the better soap operas in recent memory. By way of quick review: late last year, it was revealed that the National Security Agency (NSA) may have been monitoring domestic phone calls with something less than the proper degree of judicial oversight. In response, the Electronic Frontier Foundation filed a class action suit against AT&T—that company being the largest telecom accused of collaborating with the NSA.

Nearly concurrent with a series of denials issued by AT&T came a revelation by whistleblower Mark Klein, who claims that there is a secret room tucked away at an AT&T switching center in San Francisco. Klein said that he had not only observed monitoring equipment being installed in that room, but the person installing the equipment was a technician whom he had recommended months earlier to an NSA agent for an unspecified "special job." Documents backing up Klein's assertions were later released to the public by Wired.

In May, the Department of Justice (DoJ) got directly involved with the case, invoking the state secrets privilege to have the suit stopped. State secrets is a legal concept first articulated in the 1950s, under which the government can block the release of documents that it believes might harm national security should they be made public. In almost every instance since its creation, invoking state secrets has put a complete stop to any case in which it is applied.

Not this time. In July, Judge Walker determined that "dismissing this case at the outset would sacrifice liberty for no apparent enhancement of security," and permitted the case to proceed. He also proposed appointing an expert to assist the court with evidence disclosure in order to "honor the extraordinary security concerns raised by the government."

The DoJ is appealing the Judge's decision to let the suit move forward, but in a document filed on Monday (PDF), requested a stay of all activity in the case—including the appointment of the expert—pending the higher court's decision on appeal.

In its filing, the DoJ claims that "the decision on whether to grant access to classified information rests with the Executive Branch, and any order by the Court appointing such an expert to review and assess the status of classified information would raise profound separation of powers concerns that should be avoided."

Additionally, the document goes on to describe jurisdictional issues that could occur if the lower court is allowed to proceed. "Since the Court of Appeals may disagree with this Court?s view that the case can proceed at all, any attempt to proceed now risks the very disclosures that an appeal is intended to address and the potential harm to national security at take—effectively destroying appellate court jurisdiction by mooting the significant issues on appeal."

Certainly, if the case continues forward and the appellate court takes a long time to reach a decision, it is possible that some of what the government is trying to keep under wraps could come to light, rendering the higher court's decision moot. All the more reason to engage in a speedy appeals process to minimize that risk.

It's hard to refrain from pointing out that the precarious course the DoJ now finds itself following could probably have been avoided if the NSA had only utilized traditional court oversight in its monitoring program. While many citizens probably agree that there are times when the government needs to conduct investigations into suspicious activity, it is the blanket avoidance of such oversight which raised privacy concerns in so many quarters and prompted the AT&T suit in the first place.